Time & Attendance
By Jon Hyman
Dec. 9, 2015
On Oct. 12, the University of Southern California fired its head football coach, Steve Sarkisian. On Dec. 7, Sarkisian filed a 31-page, 14-count complaint in California state court challenging his termination. The crux of his claims? That USC violated state disability-discrimination laws by terminating him because of his disability and failing to accommodate his disability—alcoholism.
There is no doubt that the ADA protects alcoholism as a disability. The law, however, draws a line between protected addiction and unprotected on-the-job misconduct , even when the former causes the latter.
This case will test the limits of that line.
Here’s what the EEOC has to say about alcoholism under the ADA (with some paraphrasing).
Q. Does the ADA protect employees with substance abuse problems?
Q: May an employer require an employee who is an alcoholic to meet the same standards of performance and conduct applied to other employees?
A: Yes. The ADA specifically provides that employers may require an employee who is an alcoholic to meet the same standards of performance and behavior as other employees. An employer does not have to tolerate poor job performance or unsatisfactory behavior—such as absenteeism, tardiness, insubordination, or on-the-job accidents—related to an employee’s alcoholism if similar performance or conduct would not be acceptable for other employees.
Q: May an employer discipline an employee who violates a workplace policy that prohibits the use of alcohol in the workplace?
A: Yes. The ADA specifically permits employers to prohibit the use of alcohol in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism, may face the same discipline as any other employee.
Q: May an employer suggest that an employee who has engaged in misconduct due to alcoholism go to its Employee Assistance Program (EAP) in lieu of discipline?
A: Yes. The employer may discipline the employee, suggest that the employee seek help from the EAP, or do both. An employer will always be entitled to discipline an employee for poor performance or misconduct that result from alcoholism. But, an employer may choose instead to refer an employee to an EAP or to make such a referral in addition to imposing discipline, if the employer has such a program. The ADA does not require the establishment of an EAP, or an offer of treatment in lieu of discipline.
Q: What should an employer do if an employee mentions alcoholism, or requests accommodation, for the first time in response to discipline for unacceptable performance or conduct?
A: The employer may impose the same discipline that it would for any other employee who fails to meet its performance standard or who violates a uniformly-applied conduct rule. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for accommodation. An employee whose poor performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation, separate from any disciplinary action the employer chooses to impose and assuming the discipline for the infraction is not termination. If the employee only mentions the alcoholism but makes no request for accommodation, the employer may ask if the employee believes an accommodation would prevent further problems with performance or conduct. If the employee requests an accommodation, the employer should begin an “interactive process” to determine if an accommodation is needed to correct the problem. This discussion may include questions about the connection between the alcoholism and the performance or conduct problem. The employer should seek input from the employee on what accommodations may be needed and also may offer its own suggestions. Possible reasonable accommodations may include a modified work schedule to permit the employee to attend an on-going self-help program.
How does this shake out in Sarkisian’s case? USC has steadfastly maintained that it terminated Sarkisian for his on-the-job misconduct (details here). As explained above, alcoholism does not excuse one’s misconduct. Consider this example, also from the EEOC:
An employer has warned an employee several times about her tardiness. The next time the employee is tardy, the employer issues her a written warning stating one more late arrival will result in termination. The employee tells the employer that she is an alcoholic, her late arrivals are due to drinking on the previous night, and she recognizes that she needs treatment. The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employee’s drinking, such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night. However, absent undue hardship, the employer must grant the employee’s request to take leave for the next month to enter a rehabilitation program.
If USC has an issue, it will come from the timing of Sarkisian’s termination relative to his entrance into a treatment program. Sarkisian received the call that he was fired while on an airplane on his way to an alcohol treatment center. The day prior, his assistant coach pull him out of a game, believing he was drunk on the sidelines, and his boss announced that Sarkisian would be taking an indefinite leave of absence to enter treatment. Earlier in the season, Sarkisian apologized for apparent drunken behavior at a booster eventand promised then to seek treatment. He also stated he would not drink for the remainder of the season. Those promises were not kept, leading to his termination. The key issue in this case is whether, given all of the evidence of misconduct, USC was justified in terminating Sarkisian even though it granted him leave to obtain treatment. USC needs an explanation as to why it changed its mind from leave-for-treatment to termination.
This case will be very interesting to watch, as it will test the line between accommodations for a protected addiction and manifestations of that addiction through on-the-job misconduct.
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